[In the near future there will be new leadership at the Antitrust Division.  But “near future” is a relative term so before I forget what I was thinking about, I offer this post. Bob Connolly, bob@reconnollylaw.com]

When there is a new Assistant Attorney General for Antitrust she/he will no doubt have many new ideas for running the Division.  Attorney General Merrick Garland has a strong interest and background in antitrust and undoubtedly has also thought about the direction in antitrust enforcement he wants to see the Antitrust Division take.  Much of the discussion these days revolves around concerns about hi-tech, market concentration and a revisit of the Chicago School’s influence on civil antitrust enforcement.   The debate is important and fascinating but my experience is much more in the realm of cartels. I have some ideas that might be worth thinking about relating to the criminal antitrust enforcement program.

While I did have a long career in the Antitrust Division, I have also been out for a while now so these suggestions are modestly offered as simply some ideas I think are worthy of serious consideration.

1)         Reopen the Atlanta and Dallas Field Offices

2)        Support Legislation to Amend  the Sherman Act to Explicitly Make Price Fixing  and  Bid Rigging a Criminal Violation

3)         Support Senator Klobuchar’s Proposal to Provide a reward from Criminal  Antitrust Whistleblowers

4)         Establish an  Antitrust Division Office of  Whistleblower or Special Counsel for  Whistleblowers

5)         Clarify the Standards for Deferred Prosecution Agreements.

            Starting with the first recommendation–reopening two field offices–I will briefly explain why I think it is an idea worthy of serious consideration.

  • Reopen the Atlanta and Dallas Field Offices

In late 2013, the Division closed down four regional field offices: Atlanta, Cleveland, Dallas, and Philadelphia.  The Division did not just lose regional coverage, but it lost a significant  number of experienced cartel prosecutors.  The regional offices that were closed were all in low(er) costs cities where dedicated cartel attorneys could stay with the DOJ as a career and still raise families.  Continuity and institutional memory suffered a big blow when a sledgehammer was taken to the Division’s structure.   While no one factor is responsible for the major decline in criminal antitrust prosecutions after the close of the field offices, this very bad decision certainly contributed.

There are two reasons why now is the right time to consider reopening the Atlanta and Dallas field office.  First, while the money is not in the bank yet, there seems to be bi-partisan support for a major increase in the Antitrust Division’s budget.  Secondly, field offices are well suited to support the Division’s focus on the Procurement Collusion Strike Force.  Establishing more local connections with the FBI and other federal agents and the various United  States Attorney’s offices was a prime strength of the regional field offices. Much of what the Procurement Collusion Strike Force is set up to do is what field offices did on an ongoing basis.  Long term relationships are very important.

Diversity in the Division is a worthwhile goal and regional diversity is also important.  Resurrecting two regional offices would give the Division the opportunity to create a more diverse workforce.  The South and Southwest are two very important areas in our nation’s economy and having offices in these regions can provide very important intelligence on economic trends important in the region, the judicial landscape, defense attorneys, local customs, and on. The previously closed field offices had all also brought major international cartel cases before they were closed.  The Dallas Field Office for example brought one of the earliest and largest international cartel cases:  Vitamins. (“The vitamin cartel is the most pervasive and harmful criminal antitrust conspiracy ever uncovered by the Division.”  https://www.justice.gov/atr/selected-criminal-cases-antitrust-division.  [This was written in 1999; before the auto parts cartel prosecution).

Thurman Arnold was perhaps one of the greatest, if not greatest, leader of the Antitrust Division.  Under Arnold, “Regional Offices were established throughout the country to uncover, investigate, and prosecute antitrust violations with an eye and ear to what was going on both locally and nationally.” Spencer Weber Waller, The Antitrust Legacy of Thurman Arnold, Loyola University Chicago, School of Law, (2004), available here https://lawecommons.luc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1494&context=facpubs.  Closing four field offices was a very bad legacy.  Be like Thurman Arnold.   Build back better.  Rebuild the strong legacy of regional field offices.

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PS.     While the Cleveland and Philadelphia field offices were highly productive and did not merit being closed, they added minimal geographic diversity since a glance at the map shows their area is fairly covered by existing offices/sections.A more modest proposal for re-opening offices in Atlanta and Dallas has a better chance of catching on.

 

Thanks  for reading.

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